On The Prevention of Terrorism Act Until the recent amendment made to the Prevention of Terrorism Act (shall be referred as the

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1 International Journal of Arts and Sciences 3(15): (2010) CD-ROM. ISSN: InternationalJournal.org Expression of Views Considered as Constituting Threats to the Sovereignty, Indivisibility or Territorial Integrity of the State and The Freedom of Expression Turkey Case Yusuf Sertaç Serter, Anadolu University, Turkey Abstract: Freedom of expression, a primary cornerstone of a democratic society, may be considered as one of the principal issues of Turkish political system. Although it would not be easy to analyse on a restrictive basis all legal regulations in force in Turkey restricting the right to freedom of expression, it is obvious that expression of views considered to constitute threats to the sovereignty, indivisibility or territorial integrity of the State is still one of the main grounds which limit the freedom of expression in Turkey. My study shall examine The Prevention of Terrorism Act in force in Turkey with the recent amendments made thereto, and the political and legal aspects with regard to the political parties standing for a federal administration in Turkey within the aforementioned context. The relevant jurisprudence of The European Court of Human Rights shall also be reviewed on a case-law basis in this regard. Keywords: freedom of expression, federalism, Prevention of Terrorism Act, Turkey Introduction In accordance with the above abstract, I will first give general information on the discrepancies between the Turkish Prevention of Terrorism Act and the European Convention on Human Rights, and then secondly I will try to state the juncture of the political parties standing for federalism in Turkey. With regard to the first section of my research, please bear in mind that I have tried to focus on the Prevention of Terrorism Act solely. As a consequence, the relevant provisions of the Turkish Penal Code are only referred to where mandatory. I believe that this kind of limitation is necessary since the Turkish Penal Code related issues would constitute another research subject on their own. On The Prevention of Terrorism Act Until the recent amendment made to the Prevention of Terrorism Act (shall be referred as the PTA hereafter) on July 2003, Article 8 of the PTA 1 had banned any written or oral 1 Article 8 of the PTA seths forth as follows: (1) Written and spoken propaganda, meetings, assemblies and demonstrations aimed at undermining the territorial integrity of the Republic of Turkey or the indivisible unity of the nation are prohibited. Any person who engages in such an activity shall be sentenced to not less than one and not more than three years' imprisonment and a fine of from one hundred million to three hundred million Turkish liras. The penalty imposed on a reoffender may not be commuted to a fine. (2) Where the crime of propaganda contemplated in the first paragraph is committed through the medium of periodicals within the meaning of section 3 of the Press Act (Law no. 5680), the publisher shall also be liable to a fine equal to ninety per cent of the income from the average sales for the previous month if the periodical appears more frequently than monthly. However, the fine may not be less than one hundred million Turkish liras. The editor of the periodical concerned shall be ordered to pay a sum equal to half the fine imposed on the publisher and sentenced to not less than six months' and not more than two years' imprisonment. (3) Where the crime of propaganda contemplated in the first paragraph is committed through the medium of printed matter or by means of mass communication other than periodicals within the meaning of the second paragraph, those responsible and the owners of the means of mass

2 propaganda with an objective to destroy the indivisible entity of the Turkish Republic with its territory and nation. Unlike other similar provisions in the PTA and/or the relevant provisions in the relevant criminal codes which limit the freedom of expression, Article 8 was a prohibition which could be described as a taboo since it was even banned to discuss the content thereof. As mentioned above, the PTA has been amended on July 2003 and Article 8 thereof has been abrogated. As such, abrogation of Article 8 of the PTA can be designated as a huge reform carried out in favor of the freedom of expression 2. As to the practice of the European Court of Human Rights (shall be referred as the ECHR hereafter) on the expression of views considered as constituting threats to the sovereignty, indivisibility or territorial integrity of the State and the freedom of expression, the ECHR states that expression of such views shall always be considered within the context of the freedom expression and therefore be protected under Article 10 of the European Convention 3 on Human Rights as long as expression of such views are not considered as incitement to violence. In other words, pursuant to precedents of the ECHR, separatist views and propaganda shall always be protected under Article 8 of the European Convention on Human Rights provided that they do not incite to violence and terrorism. The case of Sürek and Özdemir v. Turkey (applications nos: 23927/94 and 24277/94, judgment date: July 8, 1999) is a good example in this context. At the material time, the first applicant, Mr Kamil Tekin Sürek was the major shareholder in Deniz Basın Yayın Sanayi ve Ticaret Organizasyon, a Turkish company which owns a weekly review entitled Haberde Yorumda Gerçek (The Truth of News and Comments), published in Istanbul. The second applicant, Mr Yücel Özdemir was the editor-in-chief of the review. In the May 31, 1992 and June 7, 1992 issues of the review, an interview with a leader of the Kurdistan Workers Party ( the PKK ), an illegal organisation, was published in two parts. In the edition of May 31, 1992 a joint declaration by four socialist organisations was published. On June 1, 1992 the Istanbul National Security Court ordered the seizure of all copies of the May 31, 1992 issue of the review, since it allegedly contained a declaration by terrorist organisations and disseminated separatist propaganda. In an indictment dated June 16, 1992 the Public Prosecutor at the Istanbul National Security Court charged the applicants with having disseminated propaganda against the indivisibility of the State by publishing an interview communication shall be sentenced to not less than six months' and not more than two years' imprisonment and a fine of from one hundred million to three hundred million Turkish liras... 2 See Uygun, O. Avrupa İnsan Hakları Sözleşmesi ve Türk Hukukunda İfade Özgürlüğünün Sınırlanması (Limits of the Freedom of Expression under the European Convention on Human Rights and under Turkish Law) in Koçak, T., Doğan T., Kutluata Z. as editors (2009). Türkiye de İfade Özgürlüğü (The Freedom of Expression in Turkey), bgst Publishing, İstanbul, page Article 10 of the European Convention of Human Rights is as follows: (1) Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. (2) The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

3 with a PKK leader and a declaration made by four terrorist organisations. The charges were brought under Articles 6 and 8 of the PTA. In another indictment dated June 30, 1992, the applicants were further charged on account of having published the second part of the interview in the issue of June 7, 1992 with disseminating propaganda against the indivisibility of the State. The charges were brought under Article 8 of the PTA. On February 4, 1993 the criminal proceedings were joined in view of the fact that the incriminated articles were considered to constitute a single interview published in two parts. In a judgment dated May 27, 1993 the Istanbul National Security Court found the applicants guilty of offences under Articles 6 and 8 of the PTA. The first applicant was sentenced under Article 6 to a fine of 100,000,000 Turkish liras 4 and under Article 8 to a further fine of 200,000,000 Turkish liras 5. The second applicant was sentenced under Article 6 to a fine of 50,000,000 Turkish liras 6 and under Article 8 to six months imprisonment and a further fine of 100,000,000 Turkish liras 7. In its reasoning, the court held that the interview with the PKK leader was published in the form of a news commentary. It further held that the interviewee had referred to a certain part of Turkish territory as Kurdistan, had asserted that certain Turkish citizens who are of Kurdish origin form a separate society and that the Republic of Turkey expels Kurdish people from their villages and massacres them. The court further considered that the interviewee had praised Kurdish terrorist activities and had claimed that the Kurds should form a separate State. On these grounds, the court found that the interview, as a whole, disseminated propaganda against the indivisibility of the State. The court further held that another page of the review contained a declaration by terrorist organisations and its publication constituted a separate offence under Article 6 of the PTA. The applicants appealed against their conviction. However, on November 4, 1993 the Court of Cassation dismissed the appeal. It upheld the Istanbul National Security Court s assessment of the evidence and its reasons for rejecting the applicants defence. As such, the applicants applied to the ECHR and alleged that the authorities had unjustifiably interfered with their right to freedom of expression guaranteed under Article 10 of the European Convention on Human Rights. The ECHR stated that since the applicants were convicted of publishing declarations of terrorist organisations and disseminating separatist propaganda through the medium of the review of which they were the owner and editor respectively, the impugned interferences must also be seen in the context of the essential role of the press in ensuring the proper functioning of political democracy. While the press must not overstep the bounds set, inter alia, for the protection of vital interests of the State such as national security or territorial integrity against the threat of violence or the prevention of disorder or crime, it is nevertheless incumbent on the press to impart information and ideas on political issues, including divisive ones. Not only has the press the task of imparting such information and ideas; the public has a right to receive them. Freedom of the press affords the public one of the best means of discovering and forming an opinion of the ideas and attitudes of political leaders. The ECHR further noted that the review published two interviews with a senior figure in the PKK as well as a joint statement issued on behalf of four political organisations, which, like the PKK, were illegal under the law of Turkey. In the interviews, the PKK figure criticised what he considered to be double standards on the part of the United States of America with respect to the position of the Kurdish people in south-east 4 Indicated as old currency. Such figure is now equal to 100 Turkish liras. 5 Indicated as old currency. Such figure is now equal to 200 Turkish liras. 6 Indicated as old currency. Such figure is now equal to 50 Turkish liras. 7 Indicated as old currency. Such figure is now equal to 100 Turkish liras.

4 Turkey and condemned the policies of the authorities of Turkey in that region, which he described as being directed at driving the Kurds out of their territory and breaking their resistance. He claimed in the second interview that the war being waged by the PKK on behalf of the Kurdish people will continue until there is only one single individual left on our side. As to the joint statement, the sponsors appeal to working class solidarity in the face of a range of perceived injustices. They plead, inter alia, in favour of recognising the right of the Kurdish people to self-determination and the withdrawal of the Turkish army from Kurdistan. The Istanbul National Security Court found that the charges against both applicants brought under Articles 6 and 8 of the PTA were proven. The court considered, inter alia, that the PKK official in the interviews had accused the authorities of massacres and expulsions of Kurds living in Kurdistan, praised Kurdish terrorist activities and had argued in favour of the creation of a separate State for the Kurdish people. Furthermore, the court found that the publication of the joint statement gave rise to a separate offence under Article 6 of the PTA. In assessing the necessity of the interference, the ECHR recalled that there is little scope under Article 10/2 of the European Convention on Human Rights for restrictions on political speech or on debate on questions of public interest. Moreover, the limits of permissible criticism are wider with regard to the government than in relation to a private citizen or even a politician. In a democratic system the actions or omissions of the government must be subject to the close scrutiny not only of the legislative and judicial authorities but also of public opinion. Furthermore, the dominant position which the government occupies makes it necessary for it to display restraint in resorting to criminal proceedings, particularly where other means are available for replying to the unjustified attacks and criticisms of its adversaries. Nevertheless, it certainly remains open to the competent State authorities to adopt, in their capacity as guarantors of public order, measures, even of a criminal-law nature, intended to react appropriately and without excess to such remarks. Finally, where such remarks incite to violence against an individual or a public official or a sector of the population, the State authorities enjoy a wider margin of appreciation when examining the need for an interference with freedom of expression. The ECHR has particular regard to the words used in the interviews and the joint statement and to the context in which they were published. In this latter respect, it takes into account the background to cases submitted to it, particularly the problems linked to the prevention of terrorism. As such, it noted in the first place that the fact that the impugned interviews were given by a leading member of a proscribed organisation cannot in itself justify an interference with the applicants right to freedom of expression; equally so the fact that the interviews contained hard-hitting criticism of official policy and communicated a one-sided view of the origin of and responsibility for the disturbances in south-east Turkey. While it is clear from the words used in the interviews that the message was one of intransigence and a refusal to compromise with the authorities as long as the objectives of the PKK had not been secured, the texts taken as a whole cannot be considered to incite to violence or hatred. The ECHR has had close regard to the passages of the interviews which, in the view of the Government, can be construed in this sense. For the ECHR, however, expressions such as If they want us to leave our territory, they must know that we will never agree to it. or The war will go on until there is only one single individual left on our side. or The Turkish State wants to oust us from our territory. It is driving people out of their villages. or They want to annihilate us. are a reflection of the resolve of the opposing side to pursue its goals and of the implacable attitudes of its leaders in this regard. Seen in this vein, the interviews had a newsworthy content which allowed the public both to have an insight into the psychology of those who are the driving force behind the opposition to official policy in south-east Turkey

5 and to assess the stakes involved in the conflict. The ECHR further stated that it is naturally aware of the concern of the authorities about words or deeds which have the potential to exacerbate the security situation in the region, where since approximately 1985 serious disturbances have raged between the security forces and the members of the PKK involving a very heavy loss of life and the imposition of emergency rule in much of the region. However, it would appear to the ECHR that the domestic authorities in the instant case failed to have sufficient regard to the public s right to be informed of a different perspective on the situation in south-east Turkey, irrespective of how unpalatable that perspective may be for them. As noted previously, the views expressed in the interviews could not be read as an incitement to violence; nor could they be construed as liable to incite to violence. In the ECHR s view the reasons given by the Istanbul National Security Court for convicting and sentencing the applicants, although relevant, cannot be considered sufficient for justifying the interferences with their right to freedom of expression. Having regard to the above considerations, the ECHR concluded that the conviction and sentencing of the applicants were disproportionate to the aims pursued and therefore not necessary in a democratic society. There has accordingly been a violation of Article 10 of the European Convention on Human Rights in the particular circumstances of this case 8. Another case which would be an example is the case of Özgür Gündem v. Turkey (application no: 23144/93, judgment date: March 16, 2000). Özgür Gündem was a daily newspaper the main office of which was located in Istanbul. It was a Turkish-language publication with an estimated national circulation of up to 45,000 copies and a further unspecified international circulation. The case concerns the allegations of the applicants that Özgür Gündem was the subject of serious attacks and harassment which forced its eventual closure and for which the Turkish authorities are directly or indirectly responsible. The applicants complained that the newspaper Özgür Gündem was forced to cease publication due to the campaign of attacks on journalists and others associated with the newspaper and due to the legal steps taken against the newspaper and its staff, invoking Article 10 of the European Convention on Human Rights. The applicants claimed that the Turkish authorities had, directly or indirectly, sought to hinder, prevent and render impossible the production of Özgür Gündem by the encouragement of or acquiescence in unlawful killings and forced disappearances, by harassment and intimidation of journalists and distributors, and by failure to provide any or any adequate protection for journalists and distributors when their lives were clearly in danger and despite requests for such protection 9. The Turkish Government however emphasised that Özgür Gündem was the instrument of the terrorist organisation PKK and espoused the aim of that organisation to destroy the territorial integrity of Turkey by violent means. Nevertheless, the ECHR notes that the use of the term Kurdistan in a context which implies that it should be, or is, separate from the territory of Turkey, and the claims by persons to exercise authority on behalf of that entity, may be highly provocative to the authorities. However, the public has the right to be informed of different perspectives on the situation in south-east Turkey, irrespective of how unpalatable those perspectives appear to the authorities. The ECHR is not 8 For more information, please see and also see Karakuş, H (2001). Avrupa İnsan Hakları Mahkemesi Kararları ve Karşıoylarında Türkiye ( Turkey Faced With the Judgments of the European Court of Human Rights and the Dissenting Opinions therein), İstanbul Bar Publishing, pages , and 9 For further information, please see Gomien, D. (2005). Short Guide to the European Convention on Human Rights, Council of Europe Publishing, Strasbourg, page 109.

6 convinced that, even against the background of serious disturbances in the region, expressions which appear to support the idea of a separate Kurdish entity must be regarded as inevitably exacerbating the situation. While several of the articles were highly critical of the authorities and attributed unlawful conduct to the security forces, sometimes in colourful and derogatory terms, the ECHR nonetheless finds that they cannot be reasonably regarded as advocating or inciting the use of violence. Having regard to the severity of the penalties, it concludes that the restrictions imposed on the newspaper's freedom of expression disclosed in these cases were disproportionate to the aim pursued and cannot be justified as necessary in a democratic society. Accordingly, there has been a breach of Article 10 of the European Convention on Human Rights. 10 As mentioned above, Article 8 of the PTA has been abrogated on Afterwards, another amendment has been made to the PTA according to which only the propaganda inciting to violence and terrorism has been banned. Such provision is in line with the relevant provisions of the European Convention on Human Rights and the practice of the ECHR. As such, expression of separatist views and opinions are allowed under the PTA in theory. However, it is actually not obvious how the relevant practice shall occur/flourish in Turkey. As known, the Turkish military and civilian bureaucracy and the judicial bodies strongly believe that such separatist opinions should not be tolerated. For such reason, freedom of expression for separatist opinions may only remain in theory, and in practice such opinions may be penalized through other relevant criminal provisions instead of the abrogated Article 8 of the PTA 11. For instance, Article 220/8 of the Turkish Penal Code with the title establishment of an organization in order to commit a crime is applied for the relevant separatist opinions. Such Article 220/8 seths forth that a person who makes propaganda for the organisation or its objectives shall be sentenced to a penalty of imprisonment for a term of one to three years. If the said crime is commited through the press or broadcasting, the penalty to be given shall be increased by half 12. As seen, the content of the propaganda is not taken into consideration in 10 For more information, please see and 11 See Uygun, O. Avrupa İnsan Hakları Sözleşmesi ve Türk Hukukunda İfade Özgürlüğünün Sınırlanması (Limits of the Freedom of Expression under the European Convention on Human Rights and under Turkish Law) in Koçak, T., Doğan T., Kutluata Z. as editors (2009). Türkiye de İfade Özgürlüğü (The Freedom of Expression in Turkey), bgst Publishing, İstanbul, page 61, and please see Arslan, Z. İstisnanın Normalleş(tiril)mesi, Terör ve İfade Özgürlüğü: Türkiye Tecrübesi Üzerine Notlar (Normalization of Exception, Terror and the Freedom of Expression: Notes on Turkey Experience) in Altıparmak, K. as editor (2007). İfade Özgürlüğü, İlkeler ve Türkiye (The Freedom of Expression, Principles and Turkey), İletişim Publishing, İstanbul, page 186 where the author Arslan Z. states that back up is a technique in order to normalize the exception. That s to say, according to Arslan Z., freedom of expression should be the principle and restriction thereof should be the exception; whereas the restriction of the freedom of expression has become the principle nowadays. In this context, Arslan Z. denotes that, under Turkish law, each legal provision restricting the freedom of expression has a substitute provision as a back up. As such, in case and once one of these provisions is abrogated, such back-up provision shall be applied in lieu thereof. 12 See Arslan, Z. İstisnanın Normalleş(tiril)mesi, Terör ve İfade Özgürlüğü: Türkiye Tecrübesi Üzerine Notlar (Normalization of Exception, Terror and the Freedom of Expression: Notes on Turkey Experience) in Altıparmak, K. as editor (2007). İfade Özgürlüğü, İlkeler ve Türkiye (The Freedom of Expression, Principles and Turkey), İletişim Publishing, İstanbul, page 200, and see Uygun, O. Avrupa İnsan Hakları Sözleşmesi ve Türk Hukukunda İfade Özgürlüğünün Sınırlanması (Limits of the Freedom of Expression under the European Convention on Human Rights and under Turkish Law) in Koçak, T., Doğan T., Kutluata Z. as editors (2009). Türkiye de İfade Özgürlüğü (The Freedom of Expression in Turkey), bgst Publishing, İstanbul, page 66.

7 the aforementioned provision. That s to say, such propaganda is banned even it comprised a pacifist and democratic content in line with the laws in force. Article 216 of the Turkish Penal Code 13 is also applied in practice for such separatist opinions since provoking the public to hatred and hostility is formulated therein 14. As such, unfortunately, abrogation of Article 8 of the PTA does not have a solid effect in Turkish practice. Notwithstanding the above, Article 8 of the PTA was not the only provision that violates the freedom of expression as formulated under Article 10 of the European Convention on Human Rights. As partially denoted in the above paragraphes, Article 6 of the PTA 15 also establishes an abusive limitation of the freedom of expression which can never be justified as necessary in a democratic society since Article 6 states that any person who publishes or distributes any kind of propaganda of terrorist organisations shall be sentenced to prison for a term of one year to three years. Such a prohibiton is not in conformity with the relevant provisions of the European Convention on Human Rights since the content of the aforementioned propaganda has not been taken into consideration by the Turkish legislator 16. In order for Article 6 of the PTA to be in line with Article 10 of the European Convention on Human Rights, such provision must ban only the propaganda that incites to violence and terrorism. Pacifist and 13 Article 216 (Provoking the Public to Hatred, Hostility or Degrading) states that: (1) A person who publicly provokes hatred or hostility in one section of the public against another section which has a different characteristic based on social class, race, religion, sect or regional difference, which creates a clear and imminent danger to public security shall be sentenced to a penalty of imprisonment for a term of one to three years. (2) A person who publicly degrades a section of the public on grounds of social class, race, religion, sect, gender or regional differences shall be sentenced to a penalty of imprisonment for a term of six months to one year. (3) A person who publicly degrades the religious values of a section of the public shall be sentenced to a penalty of imprisonment for a term of six months to one year, where the act is capable of disturbing public peace. 14 For detailed information, please see Çankaya, Ö., Yamaner, M. B. (2006). Kitle İletişim Özgürlüğü (Freedom of Mass Communication), Turhan Publishing, Ankara, pages Article 6 of the PTA seths forth as follows: (1) It shall be an offence, punishable by a fine of from five million to ten million Turkish liras, to announce, orally or in the form of a publication, that terrorist organisations will commit an offence against a specific person, whether or not that person s... identity is divulged provided that it is done in such a manner that he or she may be identified, or to reveal the identity of civil servants who have participated in anti-terrorist operations or to designate any person as a target. (2) It shall be an offence, punishable by a fine of from five million to ten million Turkish liras, to print or publish declarations or leaflets emanating from terrorist organisations. (3) Where the offences contemplated in the above paragraphs are committed through the medium of periodicals within the meaning of section 3 of the Press Act (Law no. 5680), the publisher shall also be liable to a fine equal to ninety per cent of the income from the average sales for the previous month if the periodical appears more frequently than monthly, or from the sales of the previous issue if the periodical appears monthly or less frequently, or from the average sales for the previous month of the daily newspaper with the largest circulation if the offence involves printed matter other than periodicals or if the periodical has just been launched 8. However, the fine may not be less than fifty million Turkish liras. The editor of the periodical shall be ordered to pay a sum equal to half the fine imposed on the publisher. 16 See Çankaya, Ö., Yamaner, M. B. (2006). Kitle İletişim Özgürlüğü (Freedom of Mass Communication), Turhan Publishing, Ankara, page 84.

8 conciliatory propaganda should never be banned even if it emanates from a terrorist organisation 17. On Political Parties Standing for a Federal Administration Another nonconformity between the Turkish legislation and the European Convention on Human Rights relating to the separatist views is the provisions in the Law on the Regulation of Political Parties. Actually, the said Law on Regulation of Political Parties comprises some rigid provisions banning the political parties standing for separatist views. With regard to all its relevant precedents as per date, The Turkish Constitutional Court banned not only the political parties standing for a federal government, but also the political parties standing for a radical decentralization 18. Pursuant to all relevant precedents, Turkish Constitutional Court declares in a stable manner that a radical decentralization and particularly a federal government is contrary to the constitutional principle known as the indivisibility of the State with its territory and nation 19. Article 78 of the Law on the Regulation of Political Parties 20 comprises such principle as well. Pursuant to Article 78, political parties are not allowed to stand for any views and/or opinions which may be considered as contrary to indivisibility of the State with its territory and nation. The problem here is that since the Turkish Constitutional Court states without question that a federal government is contrary to the indivisibility of the State with its territory and nation, political parties in Turkey can never have the chance to stand for or defend a federal government for the purposes of securing and ensuring the national unity within the borders of Turkey. That s to say, federalism can also be defended in order to ensure the unity of the people living in a country if necessary 21. In addition, in comparing federal and unitary 17 See Uygun, O. Avrupa İnsan Hakları Sözleşmesi ve Türk Hukukunda İfade Özgürlüğünün Sınırlanması (Limits of the Freedom of Expression under the European Convention on Human Rights and under Turkish Law) in Koçak, T., Doğan T., Kutluata Z. as editors (2009). Türkiye de İfade Özgürlüğü (The Freedom of Expression in Turkey), bgst Publishing, İstanbul, page See Uygun, O. Avrupa İnsan Hakları Sözleşmesi ve Türk Hukukunda İfade Özgürlüğünün Sınırlanması (Limits of the Freedom of Expression under the European Convention on Human Rights and under Turkish Law) in Koçak, T., Doğan T., Kutluata Z. as editors (2009). Türkiye de İfade Özgürlüğü (The Freedom of Expression in Turkey), bgst Publishing, İstanbul, page For detailed information, please see Uygun, O. (2007). Federal Devlet - Temel İlkeleri, Başlıca Kurumları ve Türkiye de Uygulanabilirliği (Federal State Basic Principles, Fundamental Institutions and Applicability in Turkey), XII Levha Publishing, İstanbul, pages Article 78 of the Law on the Regulation of Political Parties is as follows: Political parties (a) shall not aim, strive or incite third parties to change the republican form of the Turkish State; the... provisions concerning the absolute integrity of the Turkish State s territory, the absolute unity of its nation, its official language, its flag or its national anthem;... the principle that sovereignty resides unconditionally and unreservedly in the Turkish nation;... the provision that sovereign power cannot be transferred to an individual, a group or a social class...; (b) shall not jeopardise the existence of the Turkish State and Republic, abolish fundamental rights and freedoms, introduce discrimination on grounds of language, race, colour, religion or membership of a religious sect, or establish, by any means, a system of government based on any such notion or concept.... (c) shall not aim to defend or establish the domination of one social class over the other social classes or the domination of a community or the setting up of any form of dictatorship; they shall not carry on activities in pursuit of such aims See Uygun O. Avrupa İnsan Hakları Sözleşmesi ve Türk Hukukunda İfade Özgürlüğünün Sınırlanması (Limits of the Freedom of Expression under the European Convention on Human Rights and under Turkish Law) in

9 systems, scholars and constitutional lawyers generally accept that federalism has some advantages. Federalism widens the opportunity for democratic participation, prevents the undue concentration of power, brings government closer to people, minimizes ethnic conflicts, establishes barricades against tyrannical govenments, encourages freedom, and reduces the administrative load on the center 22. Federalism may also be defended for economic purposes. Shortly, federalism can surely be defended for non-separatist purposes as well. However, pursuant to the settled opinion of the Turkish Constitutional Court and the Turkish bureaucracy, federalism is considered as equal to a separatist opinion. As such, the Turkish Constitutional Court does not take into consideration the actual aims or goals of political parties as to why they defend federalism. The political parties shut down by the The Constitutional Court apply to the ECHR and allege that their freedom of association has been violated. Actually, the ECHR reviews such cases based on Article 11 of the European Convention on Human Rights 23 which guarantees the freedom of assembly and association. However, since the rights guaranteed by Article 11 are linked to, or justified by, the political and social values of a democratic society, to a great extent, the rights guaranteed under Article 11 represent an extension and expension of the rights of freedom of thought, conscience and religion under Article 9 and the right to freedom of expression under Article Indeed, Article 9 implicitly allows the rights of assembly and association in its guarantee of the freedom to manifest religion or belief in community with others and in public or private. Similarly, the relevant european institutions consistently maintain that the rights guaranteed under Article 10 (i.e. freedom of expression) touch on group activities such as demonstrations. Although it considers Article 11 to be lex specialis in these cases, the ECHR has regard to Article 10 when interpreting freedom of assembly and association cases under Article Under Turkish law in force as per date, individuals have the right to defend federalism or a federal government, on the other hand political parties do Koçak, T., Doğan T., Kutluata Z. as editors (2009). Türkiye de İfade Özgürlüğü (The Freedom of Expression in Turkey), bgst Publishing, İstanbul, pages 62, See Uygun, O. (2007). Federal Devlet - Temel İlkeleri, Başlıca Kurumları ve Türkiye de Uygulanabilirliği (Federal State Basic Principles, Fundamental Institutions and Applicability in Turkey), XII Levha Publishing, İstanbul, pages 356, Article 11 provides: (1). Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests. (2). No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State. 24 See Şahin, K. (2009). İnsan Hakları ve Özgürlük Boyutuyla İfade Özgürlüğü, Gerekçeleri ve Sınırları (The Freedom of Expression with a Perspective of Human Rights and Freedom - Legal Grounds and Limits), XII Levha Publishing, İstanbul, page See Gomien, D. (2005). Short Guide to the European Convention on Human Rights, Council of Europe Publishing, Strasbourg, page 117.

10 not have such right. In other words, right to stand for a federal government has not been guaranteed for political parties under current Turkish law 26. Pursuant to the precedents of the ECHR on the political parties right to defend federalism, even very strong assertations of political claims or the presentation of political programmes aimed at the establishment of different political organisational structures within a country cannot be considered as justifying a ban on a political party, as long as the party does not incite violence against the government or individuals not subscribing to the party s views 27. In other words, the ECHR regularly states in the relevant judgments that political parties may defend and adopt any kind of political opinion or thought and question the fundamental principles and organization manner of the State provided that such parties employ or use pacifist and democratic methods for their political goals 28. As such, political parties in Turkey should be free to defend federal government instead of unitary system via democratic methods. Two judgments of the ECHR may be mentioned here regarding the above: Case of United Communist Party of Turkey and others v. Turkey (Application no: 19392/92, judgment date: January 30, 1998) and the case of Socialist Party and Others v. Turkey (Application no: 21237/93, judgment date: May 25, 1998) 29. With regard to these two cases, the aforementioned political parties have been dissolved by the Turkish Constitutional Court on the grounds that they had infringed the principles of the Turkish constitution and the Law on the Regulation of Political Parties. The Turkish Constitutional Court considered that the content and aims set out in the programmes of these political parties sought to undermine the territorial integrity and secular nature of the State and the unity of the nation. In reaching its decision on the merits, the Constitutional Court noted, inter alia, that these two political parties referred in their political message to two nations: the Kurdish nation and the Turkish nation. However, the Turkish Constitutional Court stated that it could not be accepted that there were two nations within the Republic of Turkey, whose citizens, whatever their ethnic origin, had Turkish nationality. In reality, the statements made by the these parties concerning Kurdish national and cultural rights were intended to create minorities and, ultimately, the establishment of a Kurdish-Turkish federation, to the detriment of the unity of the Turkish nation and the territorial integrity of the Turkish State. Following the applications of these two 26 See Uygun O. Avrupa İnsan Hakları Sözleşmesi ve Türk Hukukunda İfade Özgürlüğünün Sınırlanması (Limits of the Freedom of Expression under the European Convention on Human Rights and under Turkish Law) in Koçak, T., Doğan T., Kutluata Z. as editors (2009). Türkiye de İfade Özgürlüğü (The Freedom of Expression in Turkey), bgst Publishing, İstanbul, page See Gomien, D. (2005). Short Guide to the European Convention on Human Rights, Council of Europe Publishing, Strasbourg, page See Şahin, K. (2009). İnsan Hakları ve Özgürlük Boyutuyla İfade Özgürlüğü, Gerekçeleri ve Sınırları (The Freedom of Expression with a Perspective of Human Rights and Freedom - Legal Grounds and Limits), XII Levha Publishing, İstanbul, pages 450, 451. Şahin K. states that the Venice Commission, the consultancy organ for the Council of Europe, issued a guidelines on December 10-11, 1999 and has specified thereby the criteria in order to ban a political party. Such guidelines sets forth the principles to be taken into account by the member states of the Council of Europe with regard to banning political parties. According to such principles, banning a political party may only be justified in the event that such party incites violence against a democratic constitutional system. Otherwise, political parties can never be banned just because they defend a change in the constitutional systems via pacifist methods. 29 For detailed information on such cases, please see and

11 political parties to the ECHR, the ECHR handled these cases and reviewed them within the framework of the European Convention on Human Rights. Regarding both cases, the ECHR first mentioned that Article 11 must also be considered in the light of Article 10. The protection of opinions and the freedom to express them is one of the objectives of the freedoms of assembly and association as stated in Article 11. That applies all the more in relation to political parties in view of their essential role in ensuring pluralism and the proper functioning of democracy. As the ECHR has emphasised many times, there can be no democracy without pluralism. It is for that reason that freedom of expression as enshrined in Article 10 is applicable, subject to paragraph 2, not only to information or ideas that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. The fact that their activities form part of a collective exercise of freedom of expression in itself entitles political parties to seek the protection of Articles 10 and 11 of the European Convention on Human Rights. Further, the Court has held that one of the principal characteristics of democracy is the possibility it offers of resolving a country s problems through dialogue, without recourse to violence, even when they are irksome. Democracy thrives on freedom of expression. From that point of view, there can be no justification for hindering a political group solely because it seeks to debate in public the situation of part of the State s population and to take part in the nation s political life in order to find, according to democratic rules, solutions capable of satisfying everyone concerned. The Court then notes that the statements of the leaders of these two political parties put forward a political programme with the essential aim being the establishment, in accordance with democratic rules, of a federal system in which Turks and Kurds would be represented on an equal footing and on a voluntary basis. Admittedly, reference is made to the right to selfdetermination of the Kurdish nation and its right to secede ; however, read in their context, the statements using these words do not encourage secession from Turkey but seek rather to stress that the proposed federal system could not come about without the Kurds freely given consent, which should be expressed through a referendum. Pursuant to the ECHR, the fact that such a political programme is considered incompatible with the current principles and structures of the Turkish State does not make it incompatible with the rules of democracy. It is of the essence of democracy to allow diverse political programmes to be proposed and debated, even those that call into question the way a State is currently organised, provided that they do not harm democracy itself For a similar opinion, please see See Şahin, K. (2009). İnsan Hakları ve Özgürlük Boyutuyla İfade Özgürlüğü, Gerekçeleri ve Sınırları (The Freedom of Expression with a Perspective of Human Rights and Freedom - Legal Grounds and Limits), XII Levha Publishing, İstanbul, pages Şahin K. expresses that the European Convention on Human Rights only bans the political parties aiming to destroy democracy and human rights. However, this is not the case under Turkish law since as per date, the Turkish Constitutional Court banned almost each political party defending opinions contrary to the official ideology of the Turkish State. Şahin K. further notes that the major problem in Turkey is that Turkish State has never accepted democracy within global standarts but it has created its own democracy concept, and Şahin K. denominates such concept as Turkish-style democracy. The freedom of expression of Turkish political parties are determined within the framework of such Turkish-style democracy.

12 In conclusion, the ECHR expressed that the dissolution of both political parties was disproportionate to the aim pursued and consequently unnecessary in a democratic society. It follows that there has been a violation of Article 11 of the European Convention on Human Rights. Conclusion Freedom of expression is the esence of a democratic society and other fundamental human rights. Accordingly, the ECHR aims to minimize the interferences of the high contracting parties against the freedom of expression while States which do not adopt the individual rights and freedoms of liberal democracy try to confine the use of freedom of expression. It is only with an effective use of freedom of expression that individuals will have the chance to maintain opinion on the actions and operations of governments and other relevant authorities, and criticise such actions and operations. Nevertheless, governments of countries which suffer from separatist terrorist attacks inevitably interfere with the freedom of expression and limit it more. What needs to be done is to create a balance between the notions such as national security, public order, sovereignty, indivisibility, territorial integrity of the State and the freedom of expression 31. References Uygun O. Avrupa İnsan Hakları Sözleşmesi ve Türk Hukukunda İfade Özgürlüğünün Sınırlanması (Limits of the Freedom of Expression under the European Convention on Human Rights and under Turkish Law) in Koçak, T., Doğan T., Kutluata Z. as editors (2009). Türkiye de İfade Özgürlüğü (The Freedom of Expression in Turkey), bgst Publishing, İstanbul, pages Arslan, Z. İstisnanın Normalleş(tiril)mesi, Terör ve İfade Özgürlüğü: Türkiye Tecrübesi Üzerine Notlar (Normalization of Exception, Terror and the Freedom of Expression: Notes on Turkey Experience) in Altıparmak, K. as editor (2007). İfade Özgürlüğü, İlkeler ve Türkiye (The Freedom of Expression, Principles and Turkey), İletişim Publishing, İstanbul. Çankaya, Ö., Yamaner, M. B. (2006). Kitle İletişim Özgürlüğü (Freedom of Mass Communication), Turhan Publishing, Ankara. Uygun, O. (2007). Federal Devlet - Temel İlkeleri, Başlıca Kurumları ve Türkiye de Uygulanabilirliği (Federal State Basic Principles, Fundamental Institutions and Applicability in Turkey), XII Levha Publishing, İstanbul. Gomien, D. (2005). Short Guide to the European Convention on Human Rights, Council of Europe Publishing, Strasbourg. 31 See Çankaya, Ö., Yamaner, M. B. (2006). Kitle İletişim Özgürlüğü (Freedom of Mass Communication), Turhan Publishing, Ankara, page 76.

13 Şahin, K. (2009). İnsan Hakları ve Özgürlük Boyutuyla İfade Özgürlüğü, Gerekçeleri ve Sınırları (The Freedom of Expression with a Perspective of Human Rights and Freedom - Legal Grounds and Limits), XII Levha Publishing, İstanbul. Karakuş, H. (2001). Avrupa İnsan Hakları Mahkemesi Kararları ve Karşıoylarında Türkiye (Turkey faced with the Judgments of the European Court of Human Rights and the Dissenting Opinions therein), İstanbul Bar Publishing, İstanbul. Bıçak, V., Grieves E. (2007). Türk Ceza Kanunu, Türkçe İngilizce (Turkish Penal Code in Turkish and in English), Seçkin Publishing, Ankara. Jugdments of the European Court of Human Rights from and The Prevention of Terrorism Act from The Turkish Constitution from